Music fans were treated to a Valentine’s surprise last week when hip-hop pioneers De La Souloffered up their acclaimed back catalog for free download through their official website. Pretty awesome for fans and newcomers alike. Still, this giveaway comes with a complicated backstory, one marked by deep frustration with the state of sample clearances. In particular, De La Soul are emblematic of challenges facing artists in an environment of corporate mergers and major label ownership.

Contrary to many headlines, De La Soul didn’t actually give away their entire catalog, rather the portion controlled by their former label Warner Brothers Records—albums currently unavailable on any digital service. In contrast, De La Soul’s most recent full-length The Grind Date—originally released by then-independent label Sanctuary and distributed by BMG in 2004—is available on commercial online platforms. This record was not included in the free download offer, nor were their other post-Warner releases.[i] It seems the WB material is stuck in a sort of major-label license-negotiating purgatory due to De La Soul’s jazzy sound collages.

As Posdnuos, one of the group’s three emcees explained to Rolling Stone: “It’s been a trying journey… we’ve been blessed to be in the Library of Congress[ii], but we can’t even have our music on iTunes. We’ve been working very hard to get that solved.”

Some history might be helpful here. De La Soul began their career with Tommy Boy Records, a NY-based label run by Tom Silverman, which released many hiphop singles and albums now regarded as classics of the genre. When De La Soul released their first LP, the platinum-selling Three Feet High and Rising in 1989, Warner owned 50 percent of Tommy Boy; the major label purchased the other half in 1990, and the next five De La Soul albums were released on the Tommy Boy imprint as part of Warner. Ultimately, Warner was unsatisfied with sales figures and Silverman bought back the Tommy Boy label in 2002 in a deal that left Warner with ownership of the back catalog masters.

So what’s keeping this back catalog from appearing on digital services? Without seeing contracts, we can only speculate, but Rolling Stone reports that Posdnuos “points to frequent personnel changes at record labels and hazy language in early contracts that have led to long delays” in obtaining clearances. Meanwhile, Tom Silverman explained the absence from digital services of large parts of the Tommy Boy back catalog this way in a tweet to journalist Peter Kafka: “Warner has not done the sample clearance work necessary to release them.”

Adding to the confusion: at least some of these albums remain in print in physical format. Rhino (another Warner imprint) released a 2xLP deluxe vinyl edition of Three Feet & Rising just last year. Why would this be okay, but iTunes is off limits? Again we can only speculate on what was “hazy” in those early contracts, but today, when sampling deals are struck, they usually include provisions for the full range of different kinds of uses. This hasn’t always been the case. It’s possible that deals and or/settlements struck with rightsholders of sampled works were written in ways that covered sales of physical media but did not anticipate new delivery formats like downloads and streaming, which are technically new licensed uses, not sales.

While it’s understandable for any artist to want to be able to make their classic works available for new audiences on the formats that young consumers especially are using, it’s unlikely that De La Soul actually controls the rights to the music they’re giving away, so they could be putting themselves at significant legal risk. You read that right: it’s unlikely that De La Soul were within their legal rights in making their own catalog available for download. Their former label Warner Bros likely own the master recordings of the De La cuts; various parties control the sound recording and composition copyrights for samples running the gamut from from Steely Dan to Billy Joel to Kraftwerk. (And contrary to what many internet users believe, you don’t have to be making money to be committing copyright infringement and ultimately liable for statutory damages). On the other hand, it’s possible that by framing the giveaway as a “gift to their fans,” De La Soul have created a situation where any potential litigant would face a PR nightmare if they filed suit.

(Bizarrely, the MP3s distributed by De La Soul seem to be sourced from illegal Russian sites; did no one have a CD copy available? Or is this perhaps a subtle dig at Warner Bros and/or sample rightsholders, implying that their failure to clear samples over the last decade drove consumers to obtain the music unlawfully?)

This “giveaway as a response to licensing failure” is similar to what happens when artists unable to clear samples turn to free unlicensed “mixtapes” as an online distribution method. This is not just the province of indie upstarts; even major-label stars like Drake, Lupe Fiasco, and Lil Wayne release this way (presumably with funds and studio time provided by their major label deals). Infringement lawsuits over mixtapes are perhaps less common than suits over commercial releases, but theydohappen.

The mixtape strategy has emerged as a way for hip-hop artists to make the best of a complex set of circumstances. But it points to a real problem. When music sits in record company vaults or is relegated to the grey market of free downloads, no one makes any money (except perhaps online ad services and file sharing sites): not the artist, not the performers or composers of the original samples. Artists, record companies, and publishers all have an incentive to make it easier to solve these problems. As Posdnous has said in an interview for Kembrew McLeod and Peter DiCola’s Creative License: The Law & Culture of Digital Sampling, “We understand that if you sample someone, you should pay for it. If someone wants to get paid for it, I understand. They made it.” It’s not as if any party is claiming the samples are fair use or non-infringing de minimus. Those topics aren’t at issue in this case.

One potential solution advocated by Tom Silverman, among others, is a statutory rate for sampling. In the same way that anyone can commercially release a cover song as long as they pay the standard compulsory rate for a mechanical license, a compulsory for sampling would allow artists to sample whatever they choose as long as the parties controlling the copyrights for the original composition and sound recording are compensated.

But not so fast; also last week, a handful of artists including Aerosmith’s Steven Tyler, Don Henley, Britney Spears, DeadMau5 and others led by music attorney Dina LaPolt came out swinging against creating a compulsory mechanical, in letters to the US Patent and Trademark Office (USPTO). A recent green paper by the USPTO recommended investigating whether a compulsory license would be desirable; LaPolt and company say in no uncertain terms that is not. LaPolt writes:

Artists can, and should continue to be able to, deny a use that they do not agree with. For one, an artist should be able to turn down uses in connection with messages that the artist finds objectionable…One could imagine countless instances of compulsory licensing working to an artist’s detriment-think of a white supremacist using black artists’ music in a way that promotes the supremacist’s hateful views.

It’s easy to see why some level of control over how works are reused can be important to many artists. Posdnuos himself sympathizes with the perspective; quoted in Creative License, he notes “I respect anybody who feels an attachment to a song that might about your mother, and then N.W.A. samples it and says ‘bitch’ over it. It’s understandable they don’t want that.”

But later in her letter, LaPolt asserts that there is no need to make any changes: “The current marketplace is working and if it ain’t broke, don’t fix it.” We’d counter that the fact that classic works like 3 Feet High and Rising and De La Soul Is Dead can’t be made available digitally without resorting to an extra-legal download promotion points to a real market failure, which demonstrates pretty clearly that something is indeed broken.

Indeed, the biggest obstacle to a mechanical license may be that the major publishers currently find the current negotiating environment advantageous, believing that they can extract more money for sampled uses than they would through a compulsory system. They may be right, but if an uncleared sample just ends up being used anyway on an unlicensed download generating no revenue for anyone, then artists and rightsholders end up losing economically and losing their ability to grant or deny permission.

So the question becomes: are there policy provisions that could allow for some kind of sensible middle ground, making it easier and more economically feasible for diverse kinds of musicians to license samples, driving more content out of the grey market of “mixtapes” and toward legal licensed uses that generate revenue for musicians and songwriters? Might there be ways to do this that still allow artists to say no to uses they deem offensive, satisfying LaPolt’s request that efforts to streamline licensing maintain the artist’s right to approval?

We think so, even as it means all sides might have to give a little bit. But that’s a topic for another day. For now, we suggest checking out Creative License, which draws on interviews with Tom Silverman, Dina La Polt, all three members of De La Soul, and dozens more.

And you can watch this clip from from our 2010 Summit, which features Silverman and La Polt alongside Chuck D of Public Enemy and other industry mainstays.

[i] Sanctuary was bought up by the major label Universal in 2007, but when Universal sought to merge with EMI in 2012, EU antitrust regulators required Universal to sell Sanctuary as a condition of the merger. Sanctuary was then bought by BMG Rights Management, which is the only part of BMG left as a standalone entity after Sony acquired BMG Music’s assets in 2008.

[ii] In 2011, Three Feet High and Rising was chosen for the Library of Congress’s National Recording Registry, an honor bestowed on a very select number of recordings deemed historically and culturally significant.